Tell The Courts to Improve PACER

2009 August 19

by recapthelaw

One way to promote broader public access to the public record is to use RECAP to share documents with others. A complimentary approach is to tell the U.S. Courts directly what should change. Recently, Stanford Law Librarian Erika Wayne launched a petition to “Improve PACER,” which suggested several changes:

Provide document authentication
As the raw materials of adjudication become digitized and disseminated online, we must have some means of knowing that they are genuine. This is a dilemma that RECAP faces in helping users to trust the documents they download.

Lower costs, improve interfaces
Our ultimate goal is to remove PACER’s paywall entirely and free the database up for third parties to build interfaces. But in the meantime, it would certainly benefit the public to gain less expensive access to the law through more useful interfaces. The petition recommends that the U.S. Courts reduce the transaction costs of access, and make that access more usable.

Free access from Federal Depository Libraries

The Federal Depository Library Program has served the American public for decades by providing member libraries with collections of federal records at no cost. There are about 1,250 libraries nationwide. The U.S. Courts experimented with free access to PACER from 16 of these libraries recently, but in 2008 the program was discontinued. The petition calls for universal implementation of free access in these libraries.

Erika will deliver the petition to the Administrative Office of the Courts in the near future. If you support these goals, consider signing the petition.

One quick improvement to PACER would be for all of the district courts to follow the same standard for the “free” publication of rulings. Some, like the N.D. Cal. publish most every order and ruling for free, even stipulated and consent orders. Most others, only put the “free” on written opinions, and so, the pay-per-page applies to every other form of ruling, order and disposition.
There is no basis for districts to act in varying ways when it comes to making all rulings freely available on PACER.

As no one else has done so, I would like to reply to the anonymous poster who asked, “Since the fees are what funds the operation of PACER, who will pay for PACER if all documents are free?”

Whether or not the U.S. Courts have maintained separate budgeting and bookkeeping for PACER for administrative reasons, the truth is that every word of every public document has already been paid for, directly or indirectly, by all of us as taxpayers collectively. It’s true that the infrastructure of PACER is expensive; just as the whole infrastructure of the law is expensive.

Consider the value of physical courthouses, judicial staff, briefing attorneys, security, law libraries, and all else that the law requires for its administration. Who pays for these things?

We do. We have. We will. And here is the critical point, and the reason why PACER in its current form is deeply flawed. PACER is just part of this larger taxpayer-supported infrastructure of jurisprudence; its cost is subsumed in the total cost of the law. Any administrative bookkeeping trick that perpetuates the myth that PACER is (or has to be) either self-supporting or a profit center is fundamentally hostile to the public trust.

One quick improvement to PACER would be for all of the district courts to follow the same standard for the “free” publication of rulings. Some, like the N.D. Cal. publish most every order and ruling for free, even stipulated and consent orders. Most others, only put the “free” on written opinions, and so, the pay-per-page applies to every other form of ruling, order and disposition.
There is no basis for districts to act in varying ways when it comes to making all rulings freely available on PACER.

"Until public access becomes a matter of policy rather than blocked by PACER’s artificial pay wall, independent efforts like RECAP continue to fill a critical gap in our ability to foster a more participatory and engaged democracy."-- The Center for Democracy and Technology